Taking leave of our senses? A new age of leave entitlements

4 July, 2019

Welcome to the Autumn edition of Dynamics at Work – our first newsletter for 2019.

Happy International Women’s Day for Friday, 8 March! With this year’s theme for #IWD2019 being #BalanceforBetter, it’s a great time for us all to reflect on what that means for us and our communities and what part, no matter how small, we can play in making a difference in achieving gender balance. This is a topic of particular interest and relevance to many of our HR professional clients and we in the Employment Team are always interested in supporting our clients make their business more diverse, inclusive and productive, whilst being legally compliant.

Otherwise, it’s been a very busy start to the year for HR and in-house lawyers. So many issues are on the agenda, from casuals and the problems of double-dipping, to modern slavery, changes to the National Employment Standards, changes to the right to request flexible work arrangements, and the introduction of the much-awaited whistleblowing legislation. Add to that a possible change of Government and labour policy, it’s a lot for HR and in-house legal teams to keep abreast of. The McCabes Employment Team are always on hand to help you navigate through these issues and many others in the ever-changing employment law landscape, so please reach out if we can be of any assistance.

We also have another breakfast seminar coming up on 28 March on ‘Practical Tips for Managing Ill and Injured Employees’ – it’s always a popular session so please RSVP early to ensure a spot. More details can be found below. We would love to see you there but if you cannot make it and would like us to bring the seminar in-house to you, then just pick up the phone to us to discuss.

Appropriate Workplace Behaviour training – We’ve just done our compulsory training, have you?

As an employer committed to providing a workplace free of all forms of discrimination, bullying and sexual harassment, all McCabes staff (including our principals) have been required to attend training on Appropriate Workplace Behaviour. Lawyers are not immune! Facilitated by the McCabes Employment Team, the training covered bullying, discrimination, harassment and WHS. Participants were educated on issues such as, what is the ‘workplace’?; the impact of technology, including social media, on the types of claims we are seeing; and how to call out inappropriate behaviour if you experience it.

It is important that all organisations conduct Appropriate Workplace Training. Not only does it help instil your company’s values into the workforce to support a positive culture, it also ensures employees understand the ramifications that inappropriate behaviour can have on others and it can also mitigate the exposure of the employer if bullying, discrimination or harassment do occur in the workplace.

If your organisation has not conducted Appropriate Workplace Training for 12 months or more, please get in touch with us to discuss how we can tailor a training session or program for you.

Upcoming seminar – Practical tips for managing ill and injured workers

Venue: McCabes – Level 38, MLC Centre, 19 Martin Place, Sydney
Date: Thursday, 28 March 2019
Time: 8.00am to 9.00am

Please join us for a light breakfast in the McCabes boardroom from 7.45am.

Topic overview

At some stage, most employers will need to manage ill or injured workers and/or manage extended or repeated absences. Often managing these situations is not straightforward. In one of the most complex areas of employee management to navigate, employers need to understand their own rights and obligations as well as those of the employee. Many issues arise for consideration, including:

  • how to deal with questions around the legitimacy of an illness or injury or its certification;
  • when you can request further medical information;
  • how to manage an employee who goes absent while undergoing performance management;
  • understanding when an employee may be able to return to work and your obligations to make adjustments;
  • when it may be lawful to terminate an employee who has been on an extended absence.

McCabes’s Employment Team understand the complexities around managing an employee who is suffering from an illness or injury and all the competing interests that go with it. During the seminar we will answer the following questions:

  • What entitlements does my ill or injured employee have?
  • Do I have to accept an employee’s medical certificate as suitable evidence of their illness or injury?
  • Can I send an employee for an independent medical examination?
  • Can I continue to performance manage or investigate an ill or injured employee?
  • Can I terminate an ill or injured employee?
  • What protections are afforded to ill and injured employees?

Following the presentation, we will have some time for questions and discussion.


2019 seminars

As announced in our last newsletter, 2019 seminar dates have been locked in. The upcoming seminars will focus on managing ill and injured workers, the intersection between employment law and workers’ compensation claims and an update on general protection/adverse action claims.

Mark these dates in your diary now to ensure that you can attend.

Our latest articles

We are continuously writing articles for various publications with the aim of keeping employment issues front of mind for those that deal with people management on a regular (or not so regular) basis.

Take a look at our latest work:

Unpaid internships back in the spotlight
Unpaid internships are back in the spotlight following comments made by Muffin Break’s General Manager about the willingness of Millennials to perform unpaid work and a penalty of almost $330,000 being ordered against a former Shark Tank contestant.  We report on these events and share a three-part series on unpaid internships to educate employers on this topic.

Do not pass GO, do not collect $200 – Breach of WHS duties met with jail sentences in recent court decisions
Two individuals have recently been dealt jail sentences in circumstances where their contravention of work health and safety duties had fatal consequences. The decision to order a custodial sentence in these cases signals an increased willingness to impose harsher penalties on businesses and individuals that breach their WHS obligations.

Fair Work amendments prevent casuals from having their cake and eating it too
Amendments to the Fair Work Regulations have alleviated the opportunity for employees, who have been incorrectly classified as ‘casuals’, from double-dipping on their entitlements.  The changes come after a casual employee was awarded compensation with respect to annual leave entitlements, despite the fact he had been paid a casual loading during his employment.

Casual conversion and the National Employment Standards 
On 13 February 2019, the Fair Work Amendment (Right to Request Casual Conversion) Bill 2019 (Cth) was introduced into the House of Representatives. The Bill seeks to amend the Fair Work Act 2009, enshrining a new National Employment Standard entitlement that will enable eligible casual employees to request to be converted from casual employment to full-time or part-time employment.

Remuneration and how it drives your culture – takeaways for all organisations from the Royal Commission
In this article we look at the issues and recommendations in so far as how culture, including how employees are remunerated, has allowed misconduct to occur.  It is clear that many of the areas of concern, the risks and the recommendations identified in the Report could apply far beyond the financial services sector. They can apply equally to any organisation with a sales business.

A tale of two derogatory comments – when is it bad enough to warrant dismissal?
Two recent decisions of the Fair Work Commission have considered the issue of when an employee can be dismissed for making a derogatory or insulting comment. As this article highlights, the context in which a comment was said and any past acts of misconduct are relevant to whether dismissal is appropriate in the circumstances.

Our Employment Team assists clients to meet their goals by helping them navigate the heavily-regulated and dynamic employment environment.

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Litigation and Dispute Resolution

Canadian Court elevates thumbs-up emoji to signature status

In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract.   Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed.   Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph [18], Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)."   Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and   The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and   The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter.   Judgment At paragraph [36], Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship.   Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph [63]: "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the dictionary.com definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest.   What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.

Published by Foez Dewan
29 August, 2023

Venues NSW ats Kerri Kane: Venues NSW successful in overturning a District Court decision

The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane [2023] NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. The Decision at Trial In finding in favour of the plaintiff, Norton DCJ found that: the steps constituted a "stairwell" and therefore were in breach of the BCA due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length. even if handrails were not required, the use of them would have been good and reasonable practice given the stadium was open during periods of darkness, inclement weather, and used by a persons of varying levels of physical agility. VNSW ought to have arranged a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. installation of a handrail (or building stairs with the required chamfered edge) would not impose a serious burden on VNSW, even if required on other similar steps. Issues on Appeal VNSW appealed the decision of Norton DCJ. The primary challenge was to the trial judge's finding that VNSW was in breach of its duty of care in failing to install a handrail. In addition, VNSW challenged the findings that the steps met the definition of a 'stairwell' under the BCA as well as the trial judge's assessment of damages. Decision on Appeal The Court of Appeal found that primary judge's finding of breach of duty on the part of VNSW could not stand for multiple reasons, including that it proceeded on an erroneous construction of s5B of the Civil Liability Act 2002 and the obvious nature of the danger presented by the steps. As to the determination of breach of duty, the Court stressed that the trial judge was wrong to proceed on the basis that the Court simply has regard to each of the seven matters raised in ss 5B and 5C of the CLA and then express a conclusion as to breach. Instead, the Court emphasised that s 5B(1)(c) is a gateway, such that a plaintiff who fails to satisfy that provision cannot succeed, with the matters raised in s 5B(2) being mandatory considerations to be borne in mind when determining s 5B(1)(c). Ultimately, regarding the primary question of breach of duty, the Court found that: The stadium contained hazards which were utterly familiar and obvious to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. While the trial judge considered the mandatory requirements required by s5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that: the stadium had been certified as BCA compliant eight years before the incident; there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and the horizontal surfaces of the steps were highly slip resistant when wet. In light of the above, the Court of Appeal did not accept a reasonable person in the position of VNSW would not have installed a handrail along the stepped aisle. The burden of taking the complained of precautions includes to address similar risks of harm throughout the stadium, i.e. installing handrails on the other stepped aisles. This was a mandatory consideration under s5C(a) which was not properly taken into account. As to the question of BCA compliance, the Court of Appeal did not consider it necessary to make a firm conclusion of this issue given it did not find a breach of duty.  The Court did however indicated it did not consider the stepped aisle would constitute a "stairway" under the BCA. The Court of Appeal also found that there was nothing in the trial judge's reasons explicitly connecting the risk assessment she considered VNSW ought to have carried out, with the installation of handrails on any of the aisles in the stadium and therefore could not lead to any findings regarding breach or causation. As to quantum, the Court of Appeal accepted that the trial judge erred in awarding the plaintiff a "buffer" of $10,000 for past economic loss in circumstances where there was no evidence of any loss of income. The Court of Appeal set aside the orders of the District Court and entered judgment for VNSW with costs. Why this case is important? The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. It is also a welcome affirmation of the principles surrounding the assessment of breach of duty under s 5B and s 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person.

Published by Leighton Hawkes
18 August, 2023
Litigation and Dispute Resolution

Expert evidence – The letter of instruction and involvement of lawyers

The recent decision in New Aim Pty Ltd v Leung [2023] FCAFC 67 (New Aim) has provided some useful guidance in relation to briefing experts in litigation.

Published by Justin Pennay
10 August, 2023